Michigan and the Backlash Against Race Preferences

Bans on affirmative action deemed constitutional as more states follow suit.

In a 6-2 ruling reached yesterday, the United States Supreme Court upheld Michigan’s ban on the use of race as a factor for determining college admissions. Writing for the majority, Justice Anthony Kennedy suggested the ban can also be extended to other arenas. “There is no authority in the federal constitution or in the precedents for the judiciary to set aside Michigan laws that commit to the voters the determination whether racial preferences may be considered in governmental decisions, in particular with respect to school admissions,” he wrote. Kennedy further clarified the Court’s intent. “This case is not about how the debate about racial preferences should be resolved,” he explained. “It is about who may resolve it.”

Michigan voters resolved it in 2006 when 58 percent of the electorate approved Proposal 2. It amended the Michigan Constitution to “ban public institutions from discriminating against or giving preferential treatment to groups or individuals based on their race, gender, color, ethnicity, or national origin in public education, public employment, or public contracting.”

The move was a response to a 2003 Supreme Court ruling in Grutter v. Bollinger. In a 5-4 decision, the Court upheld the use of race as one of many factors used to determine admission to the University of Michigan (U-M) Law School as a means of ensuring educational diversity. Writing for the majority, Justice Sandra Day O'Connor indicated that the decision had a likely time limit attached to it. “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today,” she contended.

The people of Michigan preferred not to wait that long. Nonetheless, the will of the electorate was thwarted in 2012 by the United States Court of Appeals for the Sixth Circuit, in Cincinnati. In an 8-7 vote, the Court ruled that Proposal 2 violated the United States Constitution’s equal protection clause, using the reliably leftist argument that the elimination of racial preferences disproportionately affects those who would have been the beneficiaries of those preferences.

Writing for the majority, Judge R. Guy Cole Jr. proffered that specious argument. “A student seeking to have her family’s alumni connections considered in her application to one of Michigan’s esteemed public universities could do one of four things to have the school adopt a legacy-conscious admissions policy: she could lobby the admissions committee, she could petition the leadership of the university, she could seek to influence the school’s governing board, or, as a measure of last resort, she could initiate a statewide campaign to alter the state’s Constitution. The same cannot be said for a black student seeking the adoption of a constitutionally permissible race-conscious admissions policy. That student could do only one thing to effect change: she could attempt to amend the Michigan Constitution – a lengthy, expensive and arduous process – to repeal the consequences of Proposal 2.”

The disingenuousness of this reasoning is stark. Both students would have to engage in arduous efforts to get the school to adopt a particular policy, including equal efforts to effect a change in the state constitution. But because a legacy-conscious admissions policy offered additional avenues of possible redress, such alternatives constituted discrimination.

Dissenting Judge Jeffrey S. Sutton said his colleagues got it exactly backward. “A state does not deny equal treatment by mandating it,” he said, further contending that the ruling “transforms a potential virtue of affirmative action into a vice. If there is one feature of affirmative action programs that favors their constitutionality, it is that they grow out of the democratic process.”

In her dissent, Justice Sonia Sotomayor made her disdain for the democratic process quite clear, insisting that “without checks, democratically approved legislation can oppress minority groups.” “The Constitution does not protect racial minorities from political defeat,” she continued. “But neither does it give the majority free rein to erect selective barriers against racial minorities.”

Sotomayor is certainly right that democratically approved legislation can oppress minority groups, but the notion that the elimination of racial preferences constitutes oppression is absurd. And the only “selective barrier” erected here was the one that put non-minority students in a disadvantaged position with regard to college admissions. One can work hard to achieve better grades and test scores, or participate in any number of activities to enhance one’s chances of being accepted to a college. One can do nothing to alter one’s ethnicity.

In fact the Supreme Court recognized that reality on the same day they ruled on Grutter v. Bollinger. In Gratz v. Bollinger, the Court ruled 6-3 that the University of Michigan’s undergraduate policy, whereby “underrepresented” ethnic groups automatically received 20 points towards an admission score in which 100 points guaranteed admission (compared to 12 points for a prefect SAT score) was unconstitutional. Writing for the majority, Chief Justice William Rehnquist explained that "predetermined point allocations" awarding 20 points to underrepresented minorities “ensures that the diversity contributions of applicants cannot be individually assessed,” thereby rendering the law unconstitutional.

Michigan Attorney General Bill Schuette applauded yesterday’s ruling. “The U.S. Supreme Court made the right call today,” he said. “Our state constitution requires equal treatment in college admissions, because it is fundamentally wrong to treat people differently based on the color of their skin. A majority of Michigan voters embraced the ideal of equal treatment in 2006, and today their decision was affirmed.”

George Washington, an attorney for the radical leftist group By Any Means Necessary (BAMN), offered the predictable over-the-top response. “This is a terrible ruling,” he contended. “It gives the white majority the right to deny black and Latinos the right to higher education. It is today’s Plessy v. Ferguson ruling. We will fight it by every means possible. The Supreme Court has made it clear they want to repeal the gains of the Civil Rights movement.”

His sentiments were undoubtedly shared by the Black Student Union. They have condemned the low level of minority enrollment at U-M, and earlier this year they told college officials they had seven days to meet a list of seven demands addressing lack of diversity and inclusion at the University or “physical actions” will be taken on campus. One of those demands included an increase of black student representation on campus from the current 4.6 percent to 10 percent.

University of Michigan President Mary Sue Coleman and admissions director Ted Spencer were undoubtedly disappointed as well. Both have denounced the affirmative action ban, contending the school cannot achieve a fully diverse student body as a result. “It’s impossible,” Spencer said in a recent interview, “to achieve diversity on a regular basis if race cannot be used as one of many factors.”

Philip Pucillo, a lecturer at Michigan State University’s law school and a constitutional law scholar, cut through the self-inflicted hysteria. “The court isn’t saying anything about whether a public university can have a race-related admissions process in this ruling, rather they are saying that there is nothing wrong with the voters of a state saying they can’t have it,” he explained.

Additional parts of Justice Kennedy’s comments clarified exactly that. “Were the Court to rule that the question addressed by Michigan voters is too sensitive or complex to be within the grasp of the electorate; or that the policies at issue remain too delicate to be resolved save by university officials or faculties, acting at some remove from immediate public scrutiny and control; or that these matters are so arcane that the electorate’s power must be limited because the people cannot prudently exercise that power even after a full debate, that holding would be an unprecedented restriction on the exercise of a fundamental right held not just by one person but by all in common,” he wrote. “It is the right to speak and debate and learn and then, as a matter of political will, to act through a lawful electoral process.

Left-leaning Justice Stephen Breyer made a similar argument. "I continue to believe that the Constitution permits, though it does not require, the use of the kind of race-conscious programs that are now barred by the Michigan Constitution. … But the Constitution foresees the ballot box, not the courts, as the normal instrument for resolving differences and debates about the merits of these programs,” he wrote.

The ruling will impact more than just Michigan. In California, backlash largely from Asian community groups has forced legislators to shelve a bill that would have allowed race, gender and ethnicity to be considered for admissions in that state’s public universities. Six other states, including Florida, Washington, Arizona, Nebraska, Oklahoma and New Hampshire already have bans similar to the one Michigan enacted. More states could follow.

As the number of states departing from race politics orthodoxy grows, and as successful challenges to racial preferences at the high court also increase in number, the left’s stranglehold on race relations is becoming weaker and weaker. The rejection of race-based decision-making in such areas as employment and admissions has found wider acceptance among the population and in the halls of government; the sentiment is perhaps stronger than it has been in decades. These trends give hope that the era of race hatred and balkanization is approaching its end.

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